Bill Text: CA AB303 | 2015-2016 | Regular Session | Chaptered
Bill Title: Searches: county jails.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2015-10-03 - Chaptered by Secretary of State - Chapter 464, Statutes of 2015. [AB303 Detail]
Download: California-2015-AB303-Chaptered.html
BILL NUMBER: AB 303 CHAPTERED
BILL TEXT
CHAPTER 464
FILED WITH SECRETARY OF STATE OCTOBER 3, 2015
APPROVED BY GOVERNOR OCTOBER 3, 2015
PASSED THE SENATE SEPTEMBER 2, 2015
PASSED THE ASSEMBLY SEPTEMBER 3, 2015
AMENDED IN SENATE AUGUST 31, 2015
AMENDED IN ASSEMBLY APRIL 16, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Gonzalez
FEBRUARY 12, 2015
An act to amend Section 4030 of, and to add Section 4031 to, the
Penal Code, relating to searches.
LEGISLATIVE COUNSEL'S DIGEST
AB 303, Gonzalez. Searches: county jails.
Existing law establishes a statewide policy strictly limiting
strip and body cavity searches of prearraignment detainees arrested
for infraction or misdemeanor offenses and of minors detained prior
to a detention hearing on the grounds that he or she is alleged to
have committed a misdemeanor or infraction offense. Existing law
provides that if a person is arrested and taken into custody, that
person may be subjected to patdown searches, metal detector searches,
and thorough clothing searches in order to discover and retrieve
concealed weapons and contraband substances prior to being placed in
a booking cell. Existing law requires, among other things, that all
persons conducting or otherwise present during a strip search or
visual or physical body cavity search to be of the same sex as the
person being searched, except for physicians or licensed medical
personnel. Under existing law, a person who knowingly and willfully
authorizes or conducts a strip, visual, or physical body cavity
search in violation of the prescribed provisions is guilty of a
misdemeanor.
This bill would additionally require that all persons within
sight of the inmate during a strip search or visual or physical body
cavity search be of the same sex as the person being searched, except
for physicians or licensed medical personnel. The bill would extend
the protections regarding the manner in which a strip search is
conducted to all minors held in a juvenile detention facility. By
expanding the definition of a crime, creating a new crime, and
imposing additional requirements on local law enforcement, this bill
would create a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4030 of the Penal Code is amended to read:
4030. (a) (1) The Legislature finds and declares that law
enforcement policies and practices for conducting strip or body
cavity searches of detained persons vary widely throughout
California. Consequently, some people have been arbitrarily subjected
to unnecessary strip and body cavity searches after arrests for
minor misdemeanor and infraction offenses. Some present search
practices violate state and federal constitutional rights to privacy
and freedom from unreasonable searches and seizures.
(2) It is the intent of the Legislature in enacting this section
to protect the state and federal constitutional rights of the people
of California by establishing a statewide policy strictly limiting
strip and body cavity searches.
(b) The provisions of this section shall apply only to
prearraignment detainees arrested for infraction or misdemeanor
offenses and to any minor detained prior to a detention hearing on
the grounds that he or she is a person described in Section 300, 601,
or 602 of the Welfare and Institutions Code alleged to have
committed a misdemeanor or infraction offense. The provisions of this
section shall not apply to a person in the custody of the Secretary
of the Department of Corrections and Rehabilitation or the Director
of the Division of Juvenile Justice in the Department of Corrections
and Rehabilitation.
(c) As used in this section the following definitions shall apply:
(1) "Body cavity" only means the stomach or rectal cavity of a
person, and vagina of a female person.
(2) "Physical body cavity search" means physical intrusion into a
body cavity for the purpose of discovering any object concealed in
the body cavity.
(3) "Strip search" means a search which requires a person to
remove or arrange some or all of his or her clothing so as to permit
a visual inspection of the underclothing, breasts, buttocks, or
genitalia of such person.
(4) "Visual body cavity search" means visual inspection of a body
cavity.
(d) Notwithstanding any other law, including Section 40304.5 of
the Vehicle Code, when a person is arrested and taken into custody,
that person may be subjected to patdown searches, metal detector
searches, and thorough clothing searches in order to discover and
retrieve concealed weapons and contraband substances prior to being
placed in a booking cell.
(e) A person arrested and held in custody on a misdemeanor or
infraction offense, except those involving weapons, controlled
substances, or violence, or a minor detained prior to a detention
hearing on the grounds that he or she is a person described in
Section 300, 601 or 602 of the Welfare and Institutions Code, except
for those minors alleged to have committed felonies or offenses
involving weapons, controlled substances, or violence, shall not be
subjected to a strip search or visual body cavity search prior to
placement in the general jail population, unless a peace officer has
determined there is reasonable suspicion, based on specific and
articulable facts, to believe that person is concealing a weapon or
contraband, and a strip search will result in the discovery of the
weapon or contraband. A strip search or visual body cavity search, or
both, shall not be conducted without the prior written authorization
of the supervising officer on duty. The authorization shall include
the specific and articulable facts and circumstances upon which the
reasonable suspicion determination was made by the supervisor.
(f) (1) Except pursuant to the provisions of paragraph (2), a
person arrested and held in custody on a misdemeanor or infraction
offense not involving weapons, controlled substances, or violence,
shall not be confined in the general jail population unless all of
the following are true:
(A) The person is not cited and released.
(B) The person is not released on his or her own recognizance
pursuant to Article 9 (commencing with Section 1318) of Chapter 1 of
Title 10 of Part 2.
(C) The person is not able to post bail within a reasonable time,
not less than three hours.
(2) A person shall not be housed in the general jail population
prior to release pursuant to the provisions of paragraph (1) unless a
documented emergency exists and there is no reasonable alternative
to that placement. The person shall be placed in the general
population only upon prior written authorization documenting the
specific facts and circumstances of the emergency. The written
authorization shall be signed by the uniformed supervisor of the
facility or by a uniformed watch commander. A person confined in the
general jail population pursuant to paragraph (1) shall retain all
rights to release on citation, his or her own recognizance, or bail
that were preempted as a consequence of the emergency.
(g) A person arrested on a misdemeanor or infraction offense, or a
minor described in subdivision (b), shall not be subjected to a
physical body cavity search except under the authority of a search
warrant issued by a magistrate specifically authorizing the physical
body cavity search.
(h) A copy of the prior written authorization required by
subdivisions (e) and (f) and the search warrant required by
subdivision (g) shall be placed in the agency's records and made
available, on request, to the person searched or his or her
authorized representative. With regard to a strip search or visual or
physical body cavity search, the time, date, and place of the
search, the name and sex of the person conducting the search, and a
statement of the results of the search, including a list of items
removed from the person searched, shall be recorded in the agency's
records and made available, upon request, to the person searched or
his or her authorized representative.
(i) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.
(j) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse, or emergency medical
technician Level II licensed to practice in this state. A physician
engaged in providing health care to detainees and inmates of the
facility may conduct physical body cavity searches.
(k) A person conducting or otherwise present or within sight of
the inmate during a strip search or visual or physical body cavity
search shall be of the same sex as the person being searched, except
for physicians or licensed medical personnel.
( l ) All strip, visual, and physical body cavity
searches shall be conducted in an area of privacy so that the search
cannot be observed by persons not participating in the search.
Persons are considered to be participating in the search if their
official duties relative to search procedure require them to be
present at the time the search is conducted.
(m) A person who knowingly and willfully authorizes or conducts a
strip search or visual or physical body cavity search in violation of
this section is guilty of a misdemeanor.
(n) Nothing in this section shall be construed as limiting the
common law or statutory rights of a person regarding an action for
damages or injunctive relief, or as precluding the prosecution under
another law of a peace officer or other person who has violated this
section.
(o) Any person who suffers damage or harm as a result of a
violation of this section may bring a civil action to recover actual
damages, or one thousand dollars ($1,000), whichever is greater. In
addition, the court may, in its discretion, award punitive damages,
equitable relief as it deems necessary and proper, and costs,
including reasonable attorney's fees.
SEC. 2. Section 4031 is added to the Penal Code, to read:
4031. (a) This section applies to all minors detained in a
juvenile detention center on the grounds that he or she is a person
described in Section 300, 601, or 602 of the Welfare and Institutions
Code, and all minors adjudged a ward of the court and held in a
juvenile detention center on the grounds he or she is a person
described in Section 300, 601, or 602 of the Welfare and Institutions
Code.
(b) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.
(c) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse, or emergency medical
technician Level II licensed to practice in this state. A physician
engaged in providing health care to detainees, wards, and inmates of
the facility may conduct physical body cavity searches.
(d) A person conducting or otherwise present or within sight of
the inmate during a strip search or visual or physical body cavity
search shall be of the same sex as the person being searched, except
for physicians or licensed medical personnel.
(e) All strip searches and visual and physical body cavity
searches shall be conducted in an area of privacy so that the search
cannot be observed by persons not participating in the search.
Persons are considered to be participating in the search if their
official duties relative to search procedure require them to be
present at the time the search is conducted.
(f) A person who knowingly and willfully authorizes or conducts a
strip searches and visual or physical body cavity search in violation
of this section is guilty of a misdemeanor.
(g) Nothing in this section shall be construed as limiting the
common law or statutory rights of a person regarding an action for
damages or injunctive relief, or as precluding the prosecution under
another law of a peace officer or other person who has violated this
section.
(h) Any person who suffers damage or harm as a result of a
violation of this section may bring a civil action to recover actual
damages, or one thousand dollars ($1,000), whichever is greater. In
addition, the court may, in its discretion, award punitive damages,
equitable relief as it deems necessary and proper, and costs,
including reasonable attorney's fees.
(i) This section does not limit the protections granted by Section
4030 to individuals described in subdivision (b) of that section.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
